Fort v. White

• Decision Date: 07 March 1913
• Docket Number: No. 8,548.,8,548.
• Citation: 101 N.E. 27,54 Ind.App. 210
• Parties: FORT v. WHITE et al.
• Court: Indiana Appellate Court

54 Ind.App. 210

101 N.E. 27

FORT

v.WHITE et al.

No. 8,548.

Appellate Court of Indiana, Division No. 1.

March 7, 1913.

Appeal from Circuit Court, Hancock County; Robert L. Mason, Judge.

Action by Emma Fort against Stephen C. White, executor, and others. From a judgment for defendants on demurrer, plaintiff appeals. Reversed, with directions.Chauncey W. Duncan, of Greenfield, and Wymond J. Beckett, of Indianapolis, for appellant. William Ward Cook and Charles H. Cook, both of Greenfield, for appellees.

HOTTEL, J.

The character and nature of this action is indicated by the introductory paragraph of the verified petition, which is as follows: “Comes now Emma Fort, plaintiff in the above-entitled cause, and filing her petition herein to revoke and set aside the probate of the will of William G. Scott, deceased, and the letters testamentary thereon issued to Stephen G. White, says.”

Repetition in the petition makes it too lengthy to set it out in full in this opinion; but, inasmuch as its sufficiency to withstand a demurrer is the controlling question presented by the appeal, we think it important to indicate its material averments, which are, in substance, as follows: That on the 20th day of April, 1911, Stephen G. Scott dies testate in Hancock county, Ind., seised of an estate of $40,000, and leaving as his only heirs two daughters, plaintiff Emma Fort, and defendant Mary Alice White, and his widow, Nancy M. Scott, also a defendant; that on the 26th day of April, 1911, the plaintiff, the defendants, and the attorney for the defendants met at the home of Nancy M. Scott in Greenfield, said county, and there had said attorney open and read the will of the deceased; that after hearing said will read and learning the contents thereof plaintiff then notified the defendants that she would object to the probate thereof, for the reason that said will was not the will the deceased, and had been procured by the undue influence of the defendants, and was not duly executed; that said attorney and the defendants Nancy M. Scott and Stephen G. White, requested plaintiff not to file her protest against the probation of said will, but that she go home and duly consider the matter and agreed that they would take no legal steps to probate said will for several days, and not until she could have a reasonable time to consider and determine whether she would resist the probate thereof; that plaintiff relied on said promise and agreement and went to her home in Indianapolis; that later in the afternoon of the same day appellants, in violation of their said promise, noticed, by telephone, Walter O. Bragg, one of the attesting witnesses, to come to Greenfield for the purpose of probating said will; that said Bragg arrived at Greenfield about 6:30 p. m. of said 26th day of April, 1911, the same being the third judicial day of the April term of the Hancock circuit court, and appeared in the office of the clerk of said court, and there, before such clerk, signed one of the printed blank forms in said office and swore to the same before said clerk, which was afterwards, to wit, on the 27th day of April, 1911, presented to the judge of the Hancock circuit court, and an order of the court made thereon probating said will; that said Hancock circuit court was in session on said 26th day of April, 1911, but had adjourned for the day when said Bragg appeared before the clerk of said court and signed said printed form of affidavit; that said Bragg did not appear in open court at any time, and was not examined in open court, nor before the judge of said court, in reference to the execution of said will; that the affidavit of said Bragg so made before said clerk was the sole and only evidence upon which said will was probated; that said affidavit was made by said Bragg and said will probated without the knowledge of plaintiff; that said Bragg, when said will was presented to him, stated to the clerk that the signature of Walter O. Bragg was his signature, but that he knew nothing about the execution of said will; that said Bragg did not state to said clerk that he saw the testator sign the will, or that he heard the testator declare the instrument to be his last will, or that he signed said will at the request of or in the presence of the testator, or that the testator was of sound mind and not under restraint, but on the contrary, he stated to said clerk that he had no recollection of ever signing said will, or of the circumstances under which his name was affixed thereto; that when the printed blank was presented to said Bragg by said clerk for his signature he did not read the same, but believed it contained no statements contrary to those made by him to such clerk; that upon the hearing of this petition the said Walter O. Bragg, said attesting witness, will testify that he knows absolutely nothing about the execution of said pretended will, and can remember nothing about the execution of the same; that by the deceit and false promises of the defendants, as aforesaid, plaintiff was prevented from taking legal steps to prevent the probation of said pretended will before the same was probated. A demurrer for want of facts was sustained to this petition. Appellant refused to plead further and elected to stand on the petition; whereupon a judgment was rendered for appellee.

[1] The ruling on said demurrer is assigned and relied on as error. “In this state actions to contest the validity and to resist or set aside the probate of a last will are purely statutory. As this court said in Harris v. Harris, 61 Ind. at page 123, ‘they can only be brought, and successfully maintained in the court, within the time and upon the grounds prescribed in and by the statute which authorizes such actions.”’ Evansville, etc., Co. v. Winsor, 148 Ind. 682, 685, 686, 48 N. E. 592;Bartlett et al. v. Manor et al., 146 Ind. 621, 45 N. E. 1060;Blanchard v. Wilbur, 153 Ind. 387-392, 55 N. E. 99;Potts et al. v. Felton et al., 70 Ind. 166.

[2] Under these authorities the first question to be here determined is whether appellant, in her petition, has brought herself within any statutory provision authorizing her to contest the validity of the will in question, or to resist its probate.

The only sections of statute conferring a right of this character are sections 3153 and 3154, Burns 1908, the first of which provides as follows; “If, prior to the admission of any will to probate before the clerk of the circuit court, objection thereto, in writing, verified by his affidavit, alleging that the same is not made for vexation or delay, be filed by any person with such clerk, he shall continue the same until the succeeding term of the court, when, if the person contesting such will fail to resist the probate thereof, the judge of such court may admit such will to probate; but if such objection be made before such court, reasonable time shall be allowed to the party making the same to resist the probate of such will.” Section 3154 provides as follows: “Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the circuit court of the county where the testator died, or where any part of his estate is, his allegation, in writing, verified by his affidavit, setting forth the unsoundness of mind of the testator, the undue execution of the will, that the same was executed under duress or was obtained by fraud, or any other valid objection to its validity or the probate thereof; and the executor and all other persons beneficially interested therein shall be made defendants thereto.”

It affirmatively appears from this petition that the Hancock circuit court in term, on the 26th day of April, 1911, had entered an order authorizing and directing the probate of the will in question.

The petition herein was not accompanied with any bond. It contains no averments of unsoundness of mind of the testator, or of undue execution of the will, or “that the same was executed under duress, or was obtained by fraud, or any other valid objection to its validity or the probate thereof”; nor is there any averment in the petition that it is not “made for vexation or delay.” “The rule is well affirmed that a person seeking...